The opinion
K. K. HALL, Circuit Judge,
concurring:
Although I concur in the majority’s result, I think the opinion incorrectly criticizes the Board’s decision. Contrary to the impression given by the majority, the Board did not adopt the ALJ’s application of Wonder State v. NLRB, 147 N.L.R.B. 179 (1969). Therefore, I would affirm the decision of the Board, without extraneous reference to the Wonder State problem.
In Wonder State , the Board upheld an employer’s decision to unilaterally eliminate Christmas bonuses. In that case, management’s decision in September to withhold bonuses turned out to have been justified because, by Christmas time, the business outlook was dismal. Nevertheless, the essence of the Board’s decision was merely a recognition that management should have discretion whether or not to give Christmas bonuses.
The ALJ’s opinion in this case does contain some faulty legal analysis. He mistakenly interpreted Wonder State as requiring him to decide whether bargaining would have made any difference in the employer’s decisions to decrease benefits and reduce wages. Pursuing this analysis, the ALJ found that Atlantic’s business was so bad that it could not afford to pay the additional insurance premiums regardless of whether negotiations had been held. Accordingly, the ALJ ruled that Atlantic did not have to reimburse its employees for their contribution to the insurance program. However, the ALJ concluded that business was not bad enough to justify the reduction in *1234 wages, and added that “if the Respondent had engaged in good faith bargaining on these matters, it would not have taken these benefits away from the employees.” Therefore, he required the employer to reimburse the employees for lost wages.
On review, the Board reversed the ALJ’s decision on the issue of insurance premiums, but affirmed the decision on wages. In reviewing the insurance issue, the Board specifically rejected Wonder State as .authority, noting that Christmas bonuses are variable depending on economic conditions, while insurance premiums are an ongoing, fixed benefit. However, in reviewing the wages issue, the Board did not analyze the ALJ’s opinion, but rather summarily affirmed the award.
The majority reads the Board’s summary affirmance on the wages issue as an adoption sub silentio of the ALJ’s analysis of Wonder State . It puzzles me how the majority can reach this conclusion when the Board had explicitly stated that Wonder State would not apply to the analogous issue of insurance premiums. Certainly wages — like insurance premiums — fall within the “fixed benefit” category. More likely, the Board recognized that the ALJ had reached the right result on the wages issue (albeit for the wrong reason) and saw no reason to repeat its earlier rejection of the ALJ’s interpretation of Wonder State . Reading the Board’s opinion as a whole, it is clear that the Board considered insurance premiums and wages to be fixed benefits which do not fall within the ambit of Wonder State .
It seems that the majority would have no complaint with the Board’s decision if the Board had emphasized that it disagreed with the ALJ’s analysis of Wonder State on the wages issue as well as on the insurance issue. However, since the Board never adopted Wonder State at all, I see no reason why it should be required to chastise the ALJ for his incorrect interpretation of the case. Therefore, I would enforce the Board’s decision without any caveats.